Murray Rothbard on the US Constitution: Conceived in Liberty or a Constitutional Coup?

Freedom Fest

This is the third of my FreedomFest 2021 articles. Breakout session number two is being moderated by Mark Skousen with a panel that included Patrick Newman (professor of economics at Florida Southern and a member of the Mises Institute; also, editor/translator of Rothbard’s fifth volume of “Conceived in Liberty”, Anastasia Boden (Pacific Legal Foundation), and John Norton Moore (professor at Univ of Virginia, in absentia).

Skousen: Volume V was very controversial; it makes the case that the Constitutional Convention was a big mistake. This session will present supporting and opposing viewpoints on Rothbard’s theory.

Newman: I will defend Rothbard’s thesis that the Constitution was a coup: its creation and ratification was a coup: illegal and outside the Articles’ amendment process; the ratification process was crony and against the public’s wishes. The Federalists intended the Constitution to be a big government document.

  • Coup: an illegal, unconstitutional seizure of power by a political faction, the military, or a dictator
  • The Constitutional Convention was supposed to amend the Articles of Confederation
  • The delegates scrapped the Articles and “did their own thing”
  • The Constitution was one gigantic amendment; but, it was still illegal because only nine of thirteen states conventions were needed for ratification
  • The Federalists (strong central government) vs. the Anti-federalists (states’ rights and decentralization)
  • The Federalists controlled the newspapers and post offices; they lied, bribed, and employed dirty tricks at the conventions
  • The Federalists intended the Constitution to be a big government document (strong central government to deliver crony privileges; necessary and proper clause and general welfare clause were the most elastic and enabled cronyism and a bending of the rules)
  • The benefits of the Constitution that libertarians like to champion only came about through strategic interpretation in the direction of “strict constructionism,” and after the Federalists lost power. For example, the Anti-federalists like Patrick Henry and George Clinton fought the Constitution, then became strict constructionists.

Boden: I dispute Rothbard’s thesis and am here to defend the Constitution. “Rothbard burned history.”

  • If the Constitutional Convention was a nationalist conspiracy, then it was a failure because the Constitution was one of the most libertarian documents ever written.
  • The Constitution limits the powers of the federal government. The Constitution was to have been used for enumerated ends.
  • Even the Commerce clause was intended to enhance liberty by limiting state control of economic activity.
  • Individuals were sovereign, not the state. This was a new concept, with rights instantiated in the Bill of Rights.
  • The Ninth Amendment is key, as the Constitution and Bill of Rights do not contain the entire list of “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
  • What makes the Constitution legitimate is that it protects our rights.
  • We live in the freest country in the world; where else would you like to live? Reality is the proof of the pudding.
  • Localism is not an end in itself or necessarily better in all situations than the federal government. We expect that it will be better, but liberty is the end goal. The federal government can actually secure liberties, e.g., the 14th Amendment corrected the violation of individual rights encroached upon by certain states.
  • Alexander Hamilton was one of Rothbard’s least-favorite founders. Hamilton once said: “winning the revolution was easy; governing is harder.”

Skousen: a summary from John Norton Moore in absentia

  • Power must be constrained by constitutions containing checks and balances
  • Checks and balances are in the US Constitution and should not be ignored
  • Rothbard ignores the Ninth and Tenth Amendments

Newman: Thomas Jefferson thought Scottish economist Adam Smith’s “Wealth of Nations” was a great book; Alexander Hamilton did not agree. Rothbard was way too extreme in his criticism of Adam Smith.

Boden: The fact that the government violates the Constitution does not invalidate the Constitution; it is an indication that the people have allowed this to happen. To the extent that the administrative state has run amok is a perversion of the Constitution; bureaucrats and judges have failed to uphold our freedoms.

The end.